Lawrence v. Hansen et al

Filing 21

ORDER granting 18 Apex Police Department's Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Terrence W. Boyle on 3/18/2016. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-494-BO

MICHAEL LAWRENCE,
Plaintiff,

v.
DEBORAH HANSEN, individually and in her
official capacity as police officer for the City of
Apex, North Carolina, JOHN W. LETTENEY,
individually and in his capacity as Apex, North
Carolina, Chief of Police, and the POLICE
DEPARTMENT OF APEX, NORTH
CAROLINA,
Defendants.

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ORDER

This cause comes before the Court on defendant "The Police Department of Apex, North
Carolina's" (hereinafter Apex Police Department or APD) motion to dismiss for lack of personal
jurisdiction and failure to state a claim upon which relief can be granted under Federal Rule of
Civil Procedure 12(b). [DE 18]. Plaintiff did not respond to the motion, and the matter is ripe for
ruling.
BACKGROUND
Prose plaintiff filed this action on November 6, 2015, seeking damages arising out of
alleged Fourth, Eighth, and Fourteenth Amendment violations. [DE 4]. Plaintiff admits that there
was an outstanding Colorado warrant against him for probation violations. The events
precipitating this case began with a traffic stop in Apex, North Carolina, on September 24, 2012.
When the APD officer ran plaintiffs driver's license information, the outstanding warrant was
discovered. Consequently, plaintiff was arrested and taken to jail in Wake County. Defendant

Hansen prepared what plaintiff claims was a wrongful Fugitive Affidavit, which stated that
plaintiff had been charged with the commission of a crime and then fled from justice. A bond of
$200,000.00 was imposed. Plaintiff was transferred back to Colorado on November 9, 2012,
where, plaintiff avers, the case was resolved in a reduction of bond to $5,000.00 and the eventual
dismissal of the complaint to revoke probation. Plaintiff then brought suit against the APD
arresting officer, APD chief of police, and the APD itself.
DISCUSSION
"The capacity of a governmental body to be sued in the federal courts is governed by the
law of the state in which the district court is held." Avery v. Burke Cnty., 660 F.2d 111, 113-14
(4th Cir. 1981) (citing Fed. R. Civ. P. l 7(b)). "In North Carolina there is no statute authorizing
suit against a police department." Coleman v. Cooper, 366 S.E.2d 2, 5 (N.C. 1988), overruled in
part on other grounds by Meyer v. Walls, 489 S.E.2d 880 (1997).

Accordingly, courts have frequently found that suits against police departments cannot
stand. See, e.g., Moore v. City ofAsheville, 290 F.Supp. 2d 664, 673 (W.D.N.C. 2003), aff'd 396
F.3d 385 (4th Cir. 2005) (holding that defendants' position that "under North Carolina law, the
Asheville Police Department is not a 'person' and therefore lacks capacity to be sued" was
"clearly supported by legal precedent"); Wilson v. Fayetteville Police Dep't, 2014 U.S. Dist.
LEXIS 17071, *2-3 (E.D.N.C. Feb. 8, 2014). Thus, here, the APD is not an entity capable of
being sued. Therefore, plaintiffs claim against the APD fails under Rule 12.

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CONCLUSION
For the foregoing reasons, defendant APD's motion to dismiss is GRANTED. [DE 18].

SO ORDERED, this

J1_ day of March, 2016.

~~YLhh
T~'.RRENCE

UNITED STATES DISTRICT JUlJUE

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